FEDERAL CIRCUIT COURT OF AUSTRALIA
| LEVETT & JABAUT | [2018] FCCA 284 |
| Catchwords: FAMILY LAW – Parenting – parties unable to agree where child should commence secondary schooling – first term of secondary school commenced – child missing first week of secondary school – parents had agreed parenting orders in 2008 – consent orders provided for parties to attend mediation in event unable to agree schooling – parties knew that they were unable to agree school issue for child by late 2016 – father suggests mechanism for selecting range of schools and narrowing selection to those which the parties and child might attend and inspect – desultory attempts to resolve impasse on schooling – mother twice refuses to attend mediation – mother unilaterally enrols child in secondary school of her choosing being school of child’s preference – mother does not disclose to proposed school existence of consent orders – father notifies school of orders – school withdraws enrolment – mother brings application on Christmas eve – seeks abridgment – abridgment refused by Registrar – mother seeks review of Registrar’s decision – application for review listed early January 2018 – parties fail to attend in person – matter adjourned – scarcity and waste of judicial resources – secondary school term commences – urgency of interim application – orders for enrolment made – orders made for post separation parenting and reportable family counselling. |
| Legislation: Family Law Act 1975, ss.4, 4AB 60B, 60C, 60CA, 60CC, 60CD, 60D, 60G, 60I, 61B, 61C, 65D, 69ZN, 69ZQ, 69ZT |
| Cases cited: AMS v AIF (1999) 199 CLR 160 Bondelmonte v Bondelmonte (2017) 341 ALR 179 Cowling & Cowling (1998) 22 Fam LR 776 Howell & Garson [2016] FCCA 2635 Howell & Garson (No.3) [2017] FCCA 3343 Low & Chapman [2017] FCCA 3102 | ||
| Applicant: | MS LEVETT | |
| Respondent: | MR JABAUT |
| File Number: | MLC 3801 of 2008 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 5 February 2018 |
| Date of Last Submission: | 5 February 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 13 February 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Dellidis |
| Solicitors for the Applicant: | Berger Kordos Lawyers |
| Counsel for the Respondent: | Mr Hoult |
| Solicitors for the Respondent: | Farrar Gesini Dunn Lawyers |
THE COURT ORDERS THAT
By 4:00pm on Thursday, 15 February 2018, the parties sign all documents, pay all fees and do all things as may be necessary to enrol the child X, born (omitted) 2005 (the child), at (omitted) School, (omitted) (the school).
In default of compliance by either party with paragraph (1) of this order, the consent of the party in default to such enrolment is dispensed with and the party in compliance with this order shall forthwith:
(a)seek…
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- Levett and Jabaut [2018] FCCA 284
- Case
- [2018] FCCA 284
- Decision Date
CaseChat Overview and Summary
The court was required to determine several key issues. These included the immediate enrolment of child X at the specified school, the requirement for both parents to engage in a parenting program and family therapeutic counselling, and the process for arranging and attending this counselling. Furthermore, the court needed to establish the procedure for the children's attendance at therapeutic counselling, the filing and serving of evidence and amended applications for final orders, and the conduct of mediation. The court also had to address the admissibility of evidence for the final hearing and the preparation of outlines of case concerning parenting issues.
In reaching its decision, the court made a series of orders designed to facilitate the immediate enrolment of child X and to promote the parents' engagement in therapeutic processes aimed at improving their co-parenting relationship. The court directed the parties to sign all necessary documents and pay fees for X's enrolment by a specified date, with provisions for default. It also mandated participation in a parenting program and family therapeutic counselling, with costs to be shared equally. The court further ordered that the children attend counselling as directed and set strict timelines for the filing and serving of amended applications, affidavits of evidence in chief, and outlines of case, specifically referencing relevant sections of the *Family Law Act 1975* (Cth) concerning equal shared parental responsibility, time with children, and the best interests of the child. A final hearing for all applications for final orders was scheduled.
Orders
Orders of the court
1.
By 4:00pm on Thursday, 15 February 2018, the parties sign all documents, pay all fees and do all things as may be necessary to enrol the child X, born (omitted) 2005 (the child), at (omitted) School, (omitted) (the school).
2.
In default of compliance by either party with paragraph (1) of this order, the consent of the party in default to such enrolment is dispensed with and the party in compliance with this order shall forthwith:
(a) seek enrolment of the child at the school;
(b) be at liberty to supply a copy of this order to the school.
3.
The applicant and respondent engage in a Parenting Program and as soon as possible provide a certificate of completion to the other party’s solicitor.
4.
Forthwith, the applicant and respondent arrange and attend reportable family therapeutic counselling with a counsellor as agreed and, failing agreement, with either Mr B or Ms J of (omitted), with the costs of the counselling and report to be shared equally between the parties.
5.
The applicant and respondent are to ensure that the children, X and Y born (omitted) 2002 and (omitted) 2005, attend therapeutic counselling as directed by the counsellor.
6.
By 4.00 pm on 10 December 2018 the applicant is to file and serve an affidavit annexing the report of the family therapeutic counsellor.
7.
The Interim Hearing listed for 25 February 2018 be vacated.
8.
By Friday, 30 November 2018, the parties attend mediation.
9.
All applications for final orders be adjourned for hearing before Judge A Kelly on 4 February 2019 at 10.00 am as a 2 day hearing.
10.
By 4.00 pm on 17 December 2018, the applicant file and serve upon the respondent:
(a) any amended application setting out with precision the Orders to be sought;
(b) the affidavits of evidence in chief of all witnesses including the applicant and respondent (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).
11.
By 4.00 pm on 18 January 2019, the respondent file and serve upon the applicant:
(a) any amended response setting out with precision the Orders to be sought;
(b) the affidavits of evidence in chief of all witnesses including the applicant and respondent (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).
12.
By 4.00pm on 25 January 2019, the applicant file and serve any affidavit in reply.
13.
Other than as provided in these orders, no party may file or rely upon any further evidence without leave of the court.
14.
By 4.00 pm on 31 January 2019, the parties file and serve an outline of case document respecting parenting issues including the following:
(a) a list of the documents to be relied upon;
(b) a brief chronology;
(c) an outline of contentions with respect to:
(i) whether the presumption of equal shared parental responsibility applies (s 61DA);
(ii) the considerations relevant to equal time and substantial and significant time (s 65DAA);
(iii) each of the considerations relevant to determining the best interests of X (s 60CC factors);
(iv) other relevant considerations pursuant to the Family Law Act 1975 (Cth);
(d) a statement of precise orders sought.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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